Sentencing remarks of her Honour Judge E M Tinsel:
[1] Santa Claus, on 13 October 2017 a jury found you guilty of one charge of burglary.[1] You have earlier pleaded guilty to one charge of possession of a class A prohibited substance, namely methamphetamine.[2]
[2] I have listened closely to the submissions of your lawyer and counsel for the Crown and have read all of the written material that has been placed before me. You may remain seated until I come to formally pass sentence.
Facts
[3] The burglary conviction arises from events in the early hours of 25 December 2016. At a residential address in Grey Lynn you entered a private dwellinghouse, gaining access by way of the chimney.
[4] The jury’s verdict means that they must have accepted the Crown’s contention that you entered on to that property with the intention of committing an offence under s 216F of the Crimes Act 1961. I therefore sentence you on the basis that you intended to make an unlawful disclosure of information gathered while undertaking maintenance of a communication system. The occupants had written letters to you using the mail system that you have partial responsibility for maintaining. You entered the property with the intention of disclosing what the occupants wanted for Christmas by delivering presents for each individual occupant knowing that they would be opened in the presence of the others.
[5] You committed the offence with the assistance of nine accomplices, namely reindeer that remained in getaway driver roles on the roof of the house while you entered. They have already been sentenced for their roles and received non-custodial sentences.[3]
[6] Upon entering the lounge of the house you removed several presents from a bag that you carried with you. You placed these under a Christmas tree in the lounge and then began to help yourself to a plate of biscuits that had been left for you.
[7] You were discovered when you triggered an internal burglar alarm that alerted Police who caught you in the act.
[8] When the Police who arrested you searched your pockets they found 1.2 grams of methamphetamine. You admitted that it was for personal use, and claimed that it assisted you to stay awake and keep moving in what you described as a stressful and fast-paced job.
Aggravating features
[9] There are several aggravating factors in your offending.
[10] First, you entered into a private residence while people were sleeping. People are entitled to feel safe in their homes. You removed that sense of safety. While I accept that your entry was not forcible, no person truly expects any person to come down the chimney. Indeed, given your size it is most extraordinary how you managed this.
[11] Second, premeditation. There is evidence that you prepared this offending against the victims. You saw them while they were sleeping. You knew when they were awake. You waited for a time when the victims were most vulnerable; when no creature was stirring, not even a mouse.
[12] Third, the number of offenders. Although your co-offenders played a more minor role, and did not enter the house the sheer number of offenders would have added to the intimidation.
[13] There are no mitigating features of this offending. Neither mistletoe nor wine can lessen what you did.
Purposes and principles of sentencing
[14] In sentencing you today I have had regard to the purposes and principles of sentencing as contained in ss 7-8 of the Sentencing Act 2002. For your offending the most important purposes and principles are to denounce your offending and deter others from burglary. The sentence imposed must be the least restrictive possible, and offer you rehabilitation where possible.
Starting point
[15] There is no tariff case for burglary given that the circumstances in which burglaries arise can vary greatly. In a case called Arahanga v R the Court of Appeal held that for a burglaries of two domestic dwellings the starting point is between 18 months and two and a half years.[4]
[16] Today both counsel have referred me to a range of sentencing authorities that they claim are comparable. I take those into account, but the unique factors of this case means that it really falls to be determined on first principles.
[17] For the aggravating factors identified above I set a starting point on the burglary at two years and three months’ imprisonment.
[18] I uplift this by a further three months for the possession of methamphetamine. No reduction for totality is warranted.
Personal aggravating and mitigating features
[19] Turning to factors personal to you, the PAC Report makes for dim reading. The report writer notes your lack of criminal history, but explains the sense of entitlement. You told the report writer that you divide the people you meet into two groups: “naughty” and “nice” in an attempt to justify your behaviour to them.
[20] You also indicated a callous disregard for your victims saying that they should have expected this when you came to town. The report writer records you as saying that they should not shout, cry or pout.
[21] I therefore decline to give a discount for remorse.
[22] You have an unblemished record. I am in two minds about giving you a discount for this. A discount for previous good character is often justified on the basis that a conviction and the associated fall from grace represents a significant punishment for a first time offender, as well as the prospects for rehabilitation.[5]
[23] Your counsel has emphasised the immense personal consequences this conviction will have for you. You have been stripped of your sainthood by the Greek Orthodox church.[6] The conviction will mean that the Civil Aviation Authority will likely no longer consider you a fit and proper person to hold an aviation licence and as a result this will mean you can no longer pilot a sleigh within New Zealand airspace.
[24] However, while you have no convictions, this trial was remarkable for the Crown leading no fewer than 563 million instances of propensity evidence in which you have acted similarly. None of those have led to convictions, and I consider that I must sentence you on the basis that you do not have a criminal record. Nevertheless, the discount will be small. I give a two month discount for your lack of previous convictions and the personal consequences.
[25] Although you pleaded guilty to the possession charge, you opted to defend the burglary at trial. I will discount a further one month for the guilty plea on the possession charge.
[26] That leaves an end sentence of two years’ imprisonment.
Home detention
[27] A sentence of two years’ imprisonment is a short term of imprisonment that is convertible to home detention.
[28] The address you provided at the North Pole has been assessed as unsuitable for home detention as your co-offenders all live there as well.
[29] However, even if the address had been suitable I would have declined to convert the sentence to one of home detention. Only a sentence of imprisonment is adequate to respond to your callous offending.
Outcome
[30] Mr Claus, please stand. On the charge of burglary I sentence you to two years’ imprisonment. On the charge of possession of methamphetamine I sentence you to three months’ imprisonment to be served concurrently.
[1] Crimes Act 1961, s 231(1)(a). Maximum sentence 10 years’ imprisonment.
[2] Misuse of Drugs Act 1975, s 7. Maximum sentence 6 months’ imprisonment, $1,000 fine.
[3] R v Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Donner, Blitzen and Rudolph [2017] NZDC 34564.
[4] [2012] NZCA 480, [2013] 1 NZLR 189, (2012) 26 CRNZ 63.
[5] See the recent discussion of the Court of Appeal in Taylor v R [2017] NZCA 574 at [24]-[25].
[6] I note you held this under the name Saint Nicholas. Today, counsel for the Crown has submitted the use of aliases means I should place a lesser weight on issues of good character. Nevertheless I will give you the benefit of the doubt.
Strictly obiter 